Of ebook legal restrictions: We need more FUD

It started with an article on Quartz by Christopher Groskopf, discussing the way digital media has at least partly “destroyed the concept of ownership” with terms of service that sharply limit what you can do with ebooks, digital music, or videos that you buy. I covered the same matter back in May, discussing a study that showed consumers believe they have more rights in digital media than they actually do; Groskopf touches on this study as well.

On the blog of Melville House, that publisher’s Manager of Direct Sales and Library Marketing, Chad Felix, chimes in, agreeing. He cites a test included in the Quartz piece, quizzing readers on what rights they believe they have in the digital media they buy.

The test challenges several consumer assumptions using the prompt “If I purchase this e-book…”

I can copy it for my own use

I can resell it

I can bequeath it when I die

I can give it away as a gift

I can lend it to a friend

I can put it on all my devices

I can keep it indefinitely

I own it

In all cases, the answer is “No.” You don’t own that book. You cannot copy it. You cannot resell it. You cannot give it to a friend! You cannot leave it to your children when you die! One day, you open your Kindle to resume reading Fahrenheit 451 and it’s just gone: yep, that’s basically fine. “Owning” an e-book, then, is very different than owning a hardcover or a paperback, which you are free to loan, bequeath, and sell off as you please.

Felix cites this as one of the reasons he prefers paper books to ebooks—you don’t get that problem with a book that’s part and parcel of the physical artifact that can readily be owned or transferred. He adds:

Now, companies could probably educate consumers about this reality. But they don’t. Probably because no one wants to click a button that says “license now” or “rent until rights transfer to a new publisher.” Instead, they bury this information in Terms of Service agreement, which, it is well documented, not very many people read.

On The Digital Reader, Nate Hoffelder picks up Felix’s piece and decries it as “FUD”—the term for baseless “fear, uncertainty, and doubt,” of the sort Microsoft used to spread about its competitors. Hoffelder points out that you actually can do many of the things Felix and Groskopf say you can’t, particularly if the ebook in question is sold DRM-free:

The key point where I disagree with Chad Felix, who wrote the post for Melville House (*), is that his post is predicated on the assumption that DRM and restrictive licenses aren’t just common but absolute, and that there is no other way to sell an ebook.

But the thing is, I think that point of view is based on a misreading of Chad Felix’s post. Nate was reading it as if Felix was discussing what was possible, when it seems clear he was actually talking about what was legally possible.

If you compare the above list with what technology permits, you’ll find you can technically do a lot of those things, especially if you’re buying from a permissive publisher that doesn’t incorporate DRM…but do you have the legal right to do those things? Generally not. Just because you buy a DRM-free ebook from Baen or the Humble Bundle, for example, you’re still not permitted to give a copy of it to a friend. (A lot of people do anyway, of course, and Baen seems to be fairly easy with that as long as it’s not on a major scale, but by the letter of the law, it’s still not strictly legal.)

There are exceptions to many of those things, such as the right to back up your purchases, time-shift, or space-shift, but some of those are disputed or only implied and have never been fully adjudicated by the courts. And it would be wandering fairly far afield from the purposes of the original post, which was to highlight the key differences in the way the law (and terms of service restrictions) treats paper books and ebooks.

Chad Felix works for a publisher—and, indeed, one of the more conservative publishers from a point of view of the changes new technology is bringing to the publishing industry. (Every time you turn around, it seems Melville House has found another bone to pick with Amazon.) He’s part of the establishment, and as such, has a vested interest in seeing to it that people abide by the laws and restrictions that establishment has fomented to keep itself on top. There are all these things you can’t legally do with ebooks. Too bad, so sad; you should buy print if you want to keep all your rights. It would be foolish to expect him to come out and admit that you can do these things illegally, no matter how technically easy it might be.

And it is technically easy. I’d go so far as to say it’s ridiculously so. If there were any justice, the DMCA would no longer even apply to ebook DRM, because the language of the DMCA applies to “effective protection measures” (emphasis mine) and most ebook DRM hasn’t been “effective” at keeping people from circumventing it for years. But even as it continues to apply, the DMCA anti-circumvention provision is effectively toothless. When was the last time anyone was prosecuted for cracking ebook DRM, or even for making available the tools to do so? When has it ever happened?

Tools for stripping the DRM from ebooks have been around since shortly after that DRM was invented. I remember they used to be command line tools, but now some of them have been compiled into modules for the popular ebook management program Calibre. By the letter of the DMCA, I can’t name those modules, but I would be willing to bet it would take you less than a minute of Googling to find out what they are, and perhaps ten minutes or so to download, install, and fully configure one.

And, weirdly, almost none of the major ebook stores have put any effort into blocking these cracks. About the only one who has is Apple, who has historically been very gung-ho about keeping its DRM from being worked around. Nobody else is bothering–even though the same DRM-cracking tools that can unlock ebooks purchased from a store can also unlock library ebooks checked out via Overdrive.

It’s downright strange, when you think about it. The people who run the publishers and ebook stores aren’t idiots, and they can use Google just as easily as can you or I. They have to know by now that their DRM is worthless from a standpoint of keeping out anyone who’s even mildly determined. And yet, they continue to trundle right along still using the same old DRM they have for years with no sign of changing. Perhaps they realize that any new DRM they implemented would just get cracked again anyway, so it would just be throwing money down the toilet for no real return?

As a result, the tech-savvy folks who seriously care about backing their purchases up, reading them on multiple devices, or passing them on to friends and family simply configure their computers so they can crack the DRM to do that and go right on. This might also have the side-effect of reducing the number of complaints this restrictive DRM generates, as it simply doesn’t get in the way of anyone unwilling to let it. They can treat their ebooks as if they “own” them, so they don’t have anything to complain about. We end up needing organizations like the EFF to marshal drives for DRM reform, because the power-users who would otherwise be the most likely to complain about not being able to do the things they want to do simply circumvent the issue and do those things anyway.

So, the ebook industry is in a very weird place right now, where it’s possible for a publisher to be accused of spreading FUD simply for explaining the things you can’t legally do with ebooks. (Felix could have stood to be a little more clear on that point in his post, but even so.) But you know what? Perhaps we could all use a little more fear, uncertainty, and doubt about these obnoxious restrictions if we want for that to change. Because not everyone is a power user.

Meanwhile, the generation that’s growing up used to streaming rather than owning their movies and music is also growing up used to buying ebooks that come with these inherent legal restrictions. Down the road, they might simply accept that this is the way things are supposed to be and not seek to change it. And that would be a pity from the point of view of ordinary consumers who want to own the media they purchase, as well as the power users who might prefer not having to break the law when they buy their ebooks.

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Published by Chris Meadows

TeleRead Editor and Senior Writer Chris Meadows has been writing for TeleRead--except for a brief interruption--since 2006. Son of two librarians, he has worked on a third-party help line for Best Buy and holds degrees in computer science and communications. He clearly personifies TeleRead's motto: "For geeks who love books--and book-lovers who love gadgets." Chris lives in Indianapolis and is active in the gamer community.
View all posts by Chris Meadows

Agreed. There’s abstract law and there’s actual law. Abstract law is what the text on paper says, supplemented by court rulings. It has little to do with legal practice.

Actual law costs both parties a lot of money and that makes a big difference. Even that cease and desist letter threatening all sorts of dire outcomes costs a copyright holder money. Lawyers aren’t cheap. Filing to sue costs money. Defending yourself costs money. That’s why one or both parties engage in all sorts of intimidation. I know. I was in one and they tried that. Knowing the law, I laughed.

I’d love to see a study of what happens when people respond in various ways to cease and desist letters. Options include:

1. Assume it’s a prank, toss the letter out, and do nothing.

2. Respond being nice.

3. Have a lawyer respond with a similarly threatening tone.

I took #2 tactic, since that let me contrast their bullying with my willingness to negotiate. The key lesson I learned was to not yield a inch, but to do so politely. Yielding only whets their appetite. Being nice will look good if it goes to court.

Law moves slowly. I knew I couldn’t win if I had to pay for a lawyer while fighting one of the largest literary estates on the planet, so I flipped the usual cost pressure. I’d done two years of graduate work that was basically “studying law in a medical school.” That was critical. I was 50% a lawyer with a particular knack for IP law.

Once, for instance, we disagreed about something that I could simply refuse to do. They wanted both of us to go to the judge. I refused, putting the onus of doing that on them. When the meeting was set up, I showed up, my total cost being $2.25 for a bus fare downtown and back. The estate was out several thousand dollars. They had all the expense of setting up the meeting. They had to have a local lawyer show up to give them a “presence.” They had to have their lawyer on the phone from Manhattan. Not having the judge in front of them, they blundered so badly, I won while endearing myself to the judge.

Later, when we approached concurrent motions for summary judgment, they were so confident, although they had one month to reply, they didn’t even look at what I’d done until only two weeks remained. While they’re threatened and abused, I’d saved all my moves for this one shot and it was a good one. They panicked, wrote the judge, and offered to settle out of court. A Manhattan law firm could not afford to lose to a mere Seattle author.

A short time after that, the judge dismissed their case “with prejudice.” They’d lost and lost badly, but that was because they’d gone against someone who proved more savvy about law than many lawyers. If I weren’t for all the paperwork involved. I think I could find law a heck of a lot of fun. I love seeing bullies put down.

Most people aren’t like that. At best, they can find a lawyer who thinks their case is good enough to take on for the legal fees if they win. Courts are getting better at requiring that legal fees be paid to winning defendants. That may be your one hope for dealing with bullying lawyers. The nastier they behave, the better you will look if you keep your cool.

—-

If you’re really worried about being sued or needing to sue, check out the National Writers Union. I forget the specifics, but at one time membership meant a major discount on legal fees,

It’s primarily intended for writers doing work for hire, but can help in other situations. The membership fees are based on your income from writing and can be well worth it if you are likely to get into a legal squabble. Often merely having a lawyer makes the other side more likely to back down.

—–

Law isn’t necessarily fair. It can be cruel. Years ago, I read an interesting article about EPA enforcement of hazardous waste clean-ups. The person writing it had never delivered a pound of garbage to the site needing a costly clean-up. He’d merely bought a few garabage trucks from someone who had. He had a friend whose business had dumped a large amount of hazardous wastes at the site.

He went to the initial meeting, thinking all he needed to do was explain his situation to get released by the EPA. His friend told him, in essence, “If I get sued, my company is bankrupt no matter what I do.” So the friend ignored the letter. Why help the EPA destroy your company?

At the meeting, the writer discovered that guilt or innocence was irrelevant in the eyes of the EPA. The fuss was to be over how much each party paid. He ended up paying huge legal fees to defend himself, although innocent. His friend, who was actually guilty, didn’t pay a penny. Ignoring the summons, he simply dropped off the EPA radar. That’s like response #1 above.

And never forget what many lawyers will tell you, that most disputes that go to court have an unpredictable outcome. If the outcome were clear, one or the other would settle out-of-court.

What the publishing industry really needs is to get some hard data about whether DRM actually does anything for them or not. Yes, a few publishers have gone DRM-free and aren’t going back (not that they could if they wanted to), while a few others (like O’Reilly, for which I’m an author) eschewed it in the first place.

Yet the vast majority of publishers seem to take it on faith that DRM is beneficial to them, blame their authors for insisting on DRM, or both. That’s a cop-out. And as you point out, how easy or hard a DRM is to hack seems not to concern them very much at all. Meanwhile, Hollywood studios do these kinds of studies all the time; they know in great detail how well the various content protection schemes that exist for video content work (or don’t, as the case may be) and how hackable they are.

I’ve pitched the industry on doing this type of study for a few years now and have gotten no takers. That’s a shame.

I almost mentioned Hollywood in the blog post as another example of an industry who clings to DRM even as it’s proven ineffective. And given that I worked tech support for Insignia/Dynex/Rocketfish, Best Buy’s store brands of home theater products, I have first-hand experience with that. Hollywood was rendered so paranoid by DVDJon breaking their simplistic DVD DRM that they insisted on a DRM scheme so complex that they actually intentionally break it every few months for Blu-ray. And all they’ve managed to do is provide a continuous revenue stream for companies who make Blu-ray DRM-cracking tools—they can now charge their purchasers a subscription fee to keep updating it each time Hollywood revises it.

(And in the end, all it manages to do is frustrate consumers. Insignia’s first foray into Blu-ray players fizzled because apparently the Chinese OEM who made the players for Insignia went under or was bought out, so they couldn’t provide updated firmware to the people who bought the player—which meant that month by month, more and more movies came out that our players wouldn’t play. In the end, Best Buy finally decided to give $50 gift cards to everyone who could prove they’d bought one of our players after a certain date. Thanks, Hollywood!)

And yet, Hollywood shows no sign of dumping the scheme as more trouble than it’s worth, for all the studies you say it runs. Puts me in mind of the Nutrimatic Drink Dispenser from Hitchhiker’s Guide, which would go to all the trouble of individually analyzing each user’s taste buds before providing every one with exactly the same (terrible-tasting) drink.

Of course you really have to ask Hollywood folks (like Ron Wheeler at Fox or Joe Cates at Universal) what good the studies do them. But it helps to think beyond Blu-ray and DVD, which are becoming irrelevant in the grand scheme of things anyway (just as CDs and even digital downloads are becoming irrelevant in music).

Content protection schemes for video are everywhere, including places where people either don’t notice them or don’t talk about them, starting with cable TV. They have various purposes, such as to help protect release windows (particularly of high-def content) by keeping piracy at bay (pun intended) for periods of time that they understand well, and to protect “access” models like Netflix (which only exist for book content at any scale in the library world).

It goes without saying that DRM is a pain for consumers, as it is also for content distributors and device makers. But let’s also keep in mind that the objective of a media company is to maximize revenue. As far as they are concerned, this involves a tradeoff between user convenience and copyright protection. I’m not going to get into the whole scarcity vs. abundance argument here. All I am suggesting here is that, in my 20+ years’ experience, the Hollywood folks are much better at examining that tradeoff and acting on it than book publishing people are.

@Bill: Delighted to have republished your DRM- and watermarking-related post. The good news is that Brian O’Leary is the new executive director of the Book Industry Study Group, and as you know, he cares immensely about the DRM vs. nonDRM issue and would approve of your curiosity about encryption-based protection vs. watermarking. I myself hope that in considering these matters, people will look beyond piracy rates and think about the revenue lost from inconvenience to readers as a result of trad DRM. That’s my personal take on the question.

The ultimate issue, of course, is: What mix of tech and business models can increase revenue for authors and publishers? Right now the average U.S. household spends only around $100 a year or so on recreational reading, just a fraction of the several thousand going for other entertainment. I’d very much like to see that pathetic number increase. I just believe that DRM is doing more harm than good, especially since books must compete against other media. Among other things I’ve been pushing for a national digital library endowment. The public good is my main goal, but a wonderful side benefit would be more money for well-targeted promotion of specific titles—which would benefit the retail side along with libraries.

Now on to the comments section accompanying your article. Once again, alas, someone is confusing watermarking with DRM.